Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

12 January 2006

The Big Lie

Poor Jim Frey. He published his "memoir" and thinks people should have known that calling it a "memoir" means that not everything in it was factually accurate, although a 6% quotient of admitted falsehoods (18 pages out of 300) seems a bit high in striving for "emotional accuracy." But what can anyone do about it, aside from castigating the author and the publisher?

I suppose the first question has to be whether the book was presented as nonfiction. There is pretty clear evidence that it wasand it's printed on the reverse of the title page. The Library of Congress cataloged the book as:

Note that last line. HV5800 through 5840 fall within(PDF) "Social Sciences--Social pathology and criminology--Drug habits and drug abuse." That is strictly a nonfiction category. A fictional work would fall within(PDF) PS3555, based on the author's surname and year of first publication of his first work (and assuming that Frey was born in the US; if not, it might be under PR, not PS). The middle-school warhorse Go Ask Alice, which covers the same purported area of "emotional authenticity," is in PZ (only because the author is "anonymous"). So, then, somebody at the Library of Congress believed the book was a work of nonfiction. And how did the cataloguer reach this conclusion? Not by reading the book! Instead, he or she relied upon summary information provided by the publisher before publication under the Cataloging-in-Publication program. Thus, it's reasonably certain that the publisher represented the work to the LOC as nonfiction.

Of course, some books treated as nonfiction might well contain a few fictional elements, such as a retelling of a story that the author remembers from childhood, or perhaps Plato's "dialogs" in The Republic. That, however, is very rare… and depends upon accurately labelling the particular passages as fictional (or at least nonfactual). Further, the book has ended up in bookstores and libraries in a section that the publisher (a unit of Bertelsmann GmbH1) and its marketers knew is perceived as nonfictional, regardless of their own private perceptions.

The real question is whether categorizing the book, and shelving it for all purposes, as "nonfiction" is any more deceptive than a book cover that proclaims a 23% annual rate of return from an investment system, despite the caveat inside the book that the real return was just over 9%.2 This really turns on whether the placement of a book in a "marketing category" constitutes an affirmative misrepresentation of its content. And that is not an easy question… but neither is it the clear infringement on free speech that a Certain Wingnut asserts without bothering to review anything other than "authority" supporting his preconceived position (which usually leads him to conclude that anything leading to litigation is unconstitutional).

Of course, this is just what the publishing industry needs: A publisher gets caught acting like Milli Vanilli. But then, Milli Vanilli's label was… (hint: I've already mentioned the corporate parent).

This is particularly ironic given Bertelsmann's reticence concerning its activities between 1931 and 1945. I do not assert "attainder of blood" here; I only note the irony.

Compare Keimer v. Buena Vista Books, Inc., 75 Cal. App. 4th 1220 (2000) (copy of unofficial slip opinion) (cover claim violates California deceptive trade practices statute) with Lacoff v. Buena Vista Publishing, Inc., 705 N.Y.S.2d 183 (2000) (copy of unofficial slip opinion) (cover claim does not violate New York deceptive advertising statute). Cf. Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600 (2003) (antifraud provisions applied to affirmative misrepresentations made in the course of soliciting charitable contributions do not violate the First Amendment). Madigan implicitly overrules Lacoff's main line of reasoning; Lacoff's purported state ground is not either independent or adequate, and the opinion never reaches the question of whether the evidence presented would be sufficient to state a violation of the statute.

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Other Blawgs, Blogs, and Journals

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How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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